The idea of an "institutional balance" between the legislative, executive and judicial organs of the WTO came up in the India - Quantitative Restrictions and Turkey - Textiles cases. On this issue, see Frieder Roessler's piece entitled "The Institutional Balance between the Judicial and the Political Organs of the WTO," in New Directions in International Economic Law, Essays in Honour of John H. Jackson. Roessler's paper is not available online as far as I can tell, but here's a summary by Chakravarthi Raghavan. Some key excerpts:
The World Trade Organization must ensure that its judicial organs (panels and the Appellate Body) exercise their powers with due regard to the jurisdiction assigned to other parts of its institutional structure, according to the former head of the GATT legal division, and a leading figure in the design of the Dispute Settlement Understanding (DSU) during the Uruguay Round.
In a critique of the functioning of the WTO's Dispute Settlement system, and particularly the way panels and the Appellate Body have made use of the procedural rights in the DSU to virtually nullify the substantial rights and obligations of members under the agreements, Mr.Frieder Roessler said that the competence of panels and the Appellate Body could not be determined by themselves exclusively on an interpretation of the DSU, but in the context of the complex institutional structure of the WTO and the division of decision-making among different organs, set out in the Marrakesh treaty and which reflect legitimate, negotiated policy objectives.
WTO panels, Roessler said, should respect the competence and discretionary powers of the political bodies established under the agreements, and should not reverse their determinations. And if a competent WTO body has not yet made its determination, panels should not step in and pre-empt that determination.
The role of panels, he added, should be limited to protecting Members against an abusive resort to provisions governing, for e.g., the balance of payments measures and regional trade agreements -- against measures that fall outside the discretionary authority of the BOP Committee or the Committee on Regional Trade Agreements.
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In establishing the WTO, a more complex institutional structure, separating the judicial and political bodies, were set up, and empowered to take binding decisions confirming, defining or altering the rights and obligations of members.
The membership of the WTO, through the amendment and rule-making provisions functioned as the legislative branch. Various political organs -- the Committee on Regional Trade Agreements (CRTA), the Committee on Subsidies and Countervailing Measures, the Safeguards Committee and the Committee on Balance-of-Payments (BOP) functioned as "executive authorities". The panels, arbitrators and the Appellate Body were the 'judicial organs'.
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The WTO too, he argues, should ensure that its judicial organs exercise their powers with due regard to the jurisdiction assigned to other parts of the institutional structure. Roessler examines this issue in terms of the GATT and now the WTO jurisprudence on the relationship between the procedures of the dispute settlement system and the special procedures of review set in respect of the BOP measures or the RTAs.
In a nutshell, the issue in the two cases was whether certain issues are to be decided by WTO panels and the Appellate Body, or whether instead they should be decided by the relevant WTO Committees, with panels and the Appellate Body deferring to the Committee decisions.
I always thought this was an issue worthy of more discussion. (Not by me, as I have no particular expertise, but by someone!) It has not come up much in recent years, though.
This might be a bit of a stretch in some respects, but I came across someting in last year's panel report in U.S. - Poultry (China) that might trigger some thinking about this issue, and on WTO "decision-making" more generally. The following passage relates to the interpretation of SPS Agreement Article 4:
7.134 ... There is however, a decision from the SPS Committee entitled "Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures" (the Decision). This Decision was adopted under the authority of the SPS Committee to carry out the functions necessary to implement and further the objectives of the SPS Agreement under Article 12.1. Its preamble provides that the Decision was adopted "[d]esiring to make operational the provisions of Article 4" of the SPS Agreement.
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7.136 The Panel notes, that while this decision is not binding and does not determine the scope of Article 4, we do consider that this Decision expands on the Members' own understanding of how Article 4 relates to the rest of the SPS Agreement and how it is to be implemented. [FN. 345] ...
Fn. 345 We note that typically, decisions of the SPS Committee indicate that they are not meant to affect the rights and obligations of the Members under the SPS Agreement. Such language is not present in this particular Decision.
The Panel then considered how the substance of the SPS Committee Decision affects the interpretation of Article 4.
I can't recall a Decision of this type playing such a role in WTO treaty interpretation before. (If someone is aware of it, feel free to mention it in the comments. It's the kind of thing I might not have noticed while reading cases 10 years ago).
Granted, the "institutional balance" issue here is not quite the same as those arising in the QRs and Textiles cases. Those cases were, in a sense, about which "branch" of the WTO gets to decide an issue. Despite some differences, though, the executive-judiciary relationship does appear to be involved, as the U.S. - Poultry (China) panel's reasoning seems to say that the WTO "executive" branch has some power to influence the WTO "judiciary's" interpretation of WTO obligations.
Of course, this all ties in to the broader notion of WTO "decision-making," which is provided for in WTO Agreement Article IX (and X, if you think about the concept more broadly). There is also the question of how the various WTO Committees relate to the WTO Membership as a whole acting through the Ministerial Conference or the General Council. This could be thought of as the relationship between the "Executive" and the "Legislative" branches, I suppose. Again, I have no great expertise here. I'm just hoping this triggers some thinking by people who follow this issue.
